Do you use Facebook personally or as a marketing tool? Unless you have lived under a rock, you have heard about the Facebook/Cambridge Analytica scandal. If not, just Google it. You will find plenty of recent posts. It will make you think twice about taking all those personality tests you find frequently on Facebook.

This is not the only Facebook glitch, if glitch is the proper word. Hacked lately? By that I mean, has someone sent posts to your “friends” pretending to be you?

Hopefully, you have checked your safety settings. That will help, but the type of data you share online may negate your efforts.

Hopefully, you do not share that you plan to attend an event (a feature Facebook provides), photos of your vacation while you are on vacation, or post that you are – at that very moment – at a specific location away from home.

Hopefully, you do not post photographs of your children with your child wearing a school t-shirt or jersey, the front of your house with the house number, or a photo with your vehicle’s tag number in the background.

You get the idea. If you want to use Facebook, whether for personal or business use, Facebook – and others – I suspect you already know they know more about you than you realize.

It will not hurt to look at your Facebook data and re-check your Safety Settings at https://bit.ly/1j7xk0x. I recommend another Google search (yes, search engines, news media, and other social media are tracking you, too) to find more ways to update your Facebook settings. Please look at the date of whatever you find. You want the newest version. The newer, the better. -CCE

When news came out that two New Jersey defense attorneys had spied on a plaintiff through Facebook, there was obvious buzz within the legal community over bright-line rules and attorney ethics. Just what qualifies as an ‘unauthorized’ communication? Lawyers should always take steps to tread carefully in these ‘novel ethical issues.’ First impression or not, you don’t want to end up being the poster child.

If you spend any time on Facebook, no doubt you have noticed an assortment of games or tests meant to reveal something about your personality. Have you ever wondered how much personal information you reveal about yourself, your friends, or other privacy details? If not, you should, as well as how it could be used to your detriment.

Conversely, if your intent was to obtain research on that individual, how much information did it reveal? -CCE

If you have an account on Facebook, you may have noticed posts featuring a nicely designed cloud comprised of the words your Facebook friends use most often. It’s powered by an app from a company called Vonvon, and it’s been getting a lot of attention this week from consumer privacy experts.

The reason this app has privacy hawks screeching is simple: it grabs an enormous amount of personally identifiable information and private details about Facebook users for way too little in return.

In exchange for a graphically-appealing cloud featuring the names of your children and/or significant others, pets, the stuff of warm-hearted Aws and Ohs — and, let’s not forget, potential answers to security questions that might allow a clever fraudster to execute an account takeover — the app seems to get virtually everything there is to know about you. . . .

A recent story illustrates the bonanza of social media evidence police can obtain without ever leaving the station.

From the Richmond Times Dispatch, someone allegedly crashed a van into a Richmond area high school.

‘After the crash, which occurred about 1:30 a.m., investigators monitored Twitter, Facebook and other social media sites for information on who may have been responsible. The effort paid off, police said.

In addition to incriminating tweets, text messages and phone calls, detectives recovered a cellphone video of the crash itself — footage that shows a 1996 Ford Club Wagon van slamming into the school, said Chesterfield police Lt. Steve Grohowski.’

The Defendant sought to introduce Facebook posts that the Plaintiff engaged in ‘painting, landscaping, flooring, going to the gym, undercoating a truck, and going physical.’ Newill, at *2. The Plaintiff further offered his skills as a handyman on social media. Id.

The Court held that the Facebook posts that reflected physical capabilities that were inconsistent with his claimed injury would be allowed at trial. Id. However, if during the trial the Plaintiff felt a social media exhibit was overly embarrassing, the Plaintiff could challenge that specific post under Federal Rule of Evidence 403 at that time. Newill, at *3.

Red Skies at Night

The Defendant had a witness [presumably an expert] who was to testify that the Plaintiff’s Facebook posts ‘probably [were] not giving the employers a good impression,’ was simply speculation and thus not admissible. Newill, at *4. This might have been different if there was some evidence that the connected the Plaintiff’s employment status to his social media posting, but none was offered. Id.

Bow Tie Thoughts

I am an Evidence geek. Love it as much as the Rules of Civil Procedure. The difference is Evidence goes to the heart of a trial: What is admissible? . . . .

Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it. I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it. Ummmm, no.

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply. Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI). In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in ‘native format.’ (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).

I think we can all agree that, as a general rule, employers and social media are not Facebook friends. They don’t follow each other on Twitter. Or Instagram. And they would never (ever) be caught dead sending the other a Snapchat. (Mind out of the gutter, people. Not that kind of Snapchat.)

While employment relationships, for the most part, remain ‘at-will,’ social media has slapped the handcuffs on employers in many respects when it comes to the issue of employee discipline. Most notably, the National Labor Relations Board (“NLRB”) has comedownhard on an employer’s ability to discipline an employee for social media-related conduct that has even a passing relationship to the terms and conditions of employment (e.g., complaining about wages, benefits, hours worked, etc.). The NLRB has also frowned on many social media policies and has declared nearly all of the ones it has reviewed to be unlawfully overbroad in restricting an employee’s right to engage in protected activity online.

Sorry employers… things aren’t getting any better just yet, as two recent cases have made clear.

An Employee’s First Amendment Right to ‘Like’

A federal appellate court recently ruled that clicking Facebook’s ‘Like’ button can be considered speech protected by the First Amendment. In the case, several deputies were not reappointed by the sheriff after winning his reelection campaign. What was the alleged reason for this decision? The deputies had (horror!) ‘liked’ the Facebook page of one of the sheriff’s opponents during the election….

The (now unemployed) deputies sued, citing a violation of their First Amendment rights. (A viable legal claim, as this is a public, i.e., government, employer. As discussed in a previous blog post, private employers need not concern themselves with such issues. However, when politics are at play, there’s always cause for concern, whether public or private, as was discussed in another prior post.) And guess what? The deputies won….

If you still think that Facebook allows you to have control over your privacy and no one is collecting your data, I have a dry well in Oklahoma that I know you’ll just love. Call me. -CCE

In fact, Facebook doesn’t think it would make sense to let users do that.

‘With most online services, there’s an understanding that when you use those services to share information, you’re also sharing information with the company providing the service,’ said Matt Scutari, manager of privacy and public policy at Facebook.

‘For users who are truly concerned with sharing their information with a particular platform, honestly, you might not want to share information with that platform,’ he said, speaking during a conference on digital privacy in Palo Alto, California, on Friday.

‘I don’t think there are many services out there who could claim they’re not using your information that you’re sharing with them for any purpose. They have to at least use that information to provide the service,’ he added.

Scutari was responding to a question from the audience about what tools, if any, Facebook might provide to people who want to post and share information but keep it from Facebook itself.

Lately, the company has been trying to improve its controls for sharing among friends. In September it introduced a ‘privacy checkup’ feature. And just this week it released a revamped privacy policy designed to be easier to use. The company also gives users information about how their data is used for advertising. But it has never offered users tools to limit what data Facebook can ingest when they share.

Data collection—what companies collect, and how it’s used—is an area of concern for Internet users in general, highlighted by some dramatic findings in a recent Pew survey. . . .

A federal district court in Northern Illinois, in a rather interesting case given the widespread use of Facebook and Twitter in the workplace by employees who are looking to advance both their careers with an employer as well as market themselves better, has denied an employer’s motion for summary judgment on the plaintiff’s Stored Communication Act (SCA) claim. The case is super fact-specific and may not apply in every case, but highlights an important message to employers in the social media arena, which continues to present new and interesting issues every year. . . .

I recently attended a presentation by retired judge Jacqueline Connor on the effect of social media in the legal system. After listening to her talk about a number of highly amusing cases, I went online to see just how many such cases are now out there. I was shocked to find that in the month of February 2014 alone, there were over 100 legal opinions issued in the U.S. just involving Facebook. While some of these cases were more disturbing than amusing, there were a few gems that cried out to be written about. . . .

Lawyers must take ‘appropriate’ steps to preserve their clients’ potentially relevant and discoverable social media evidence. That is the key take-away from an ethics opinion recently issued by the Philadelphia Bar Association. However, lawyers may advise a client to restrict access to the client’s social media so long as the attorney neither instructs nor permits the client to permanently destroy that information. An attorney may even instruct a client to delete information from the client’s page if the attorney preserves that information, including metadata.

You Can Hide, But You Must Preserve
Changing social media settings to ‘private’ merely restricts who may access a web page. The opposing party can still access relevant and discoverable information through discovery or by issuing a subpoena. The committee concluded that this position satisfied Rule 3.4’s prohibition against altering or destroying evidence. As long as the attorney preserves the complete evidentiary record, including metadata, an attorney may advise a client to restrict access to the client’s social media evidence, or remove social media content entirely.

You ‘Must’ Produce Complete Social Media Content
To comply with discovery requests, a lawyer ‘must’ produce the client’s complete social media content if the attorney is aware of this content’s existence. This duty arises from Rule 4.1, which prohibits attorneys from making ‘a false statement of material fact or law to a third person,’ and Rule 8.4, which prohibits ‘conduct involving dishonesty, fraud, deceit, or misrepresentation.’ A lawyer that purposefully omits portions of social media content, or permits or directs the client to destroy social media content, violates these rules.

Also, a lawyer must take reasonable steps to obtain relevant information from the client when the lawyer ‘reasonably believes’ that the client possesses relevant information, such as photographs, links, or other social media content. Despite being obligated to take reasonable steps, a lawyer need not obtain information that was neither in the client’s possession nor the lawyer’s possession.
Frankly, this isn’t groundbreaking or a new duty, it merely reinforces the need for lawyers to better understand social media for purposes of litigation.

We’ve all have run into them, regardless of whether the person is a 1L or paralegal student. Thankfully, this stage is often temporary. In some cases, unfortunately, the condition is permanent. -CCE

Pack it in everybody! Mere days into the new year, there’s a 1L out there who has the ‘law’ all figured out. He can isolate the relevant aspects of a case at first glance and his agile mind can dismiss a flawed reading with ease. He’s so prepared that he’s already talking smack about law school graduates. And he did it all on Facebook so we can see how smart he is. We are truly living in blessed times. He will restore balance to the law!

Now, some naysayers would suggest that a 1L a few days into their law school career has no place calling out the work of those who’ve come before as irrelevant and untrue. That perhaps singling out by name a law school graduate and questioning his legal acumen was excessive for a mere pup. Ignore those voices. You can’t silence genius like this. . . .

I can always depend on Jim to recommend the best practices to keep a law office moving smoothly, as well as a preview of new technology. Although Jim’s home base is the Oklahoma Bar Association, he is in national demand. If you like what you see, I recommend checking out his articles at the ABA web site. Better yet, especially for Oklahoma solo and small firms, the Oklahoma Bar Association’s Solo and Small Firm Annual Conference is a fabulous event due to Jim’s leadership and connections. You will meet technology experts from all over the country.

Jim has moved his blog to a new address: www.lawpracticetipsblog.com. The old one still works, but I do not know how long it will work. -CCE

There’s been quite a lot of technology-related news over the last several months. Some of it is directly related to the legal profession. Much of it is at least indirectly related to the legal profession. There have also been some interesting court rulings related to technology. Rather than featuring just a few items, I decided to do a roundup of many of these items with a few comments. . . .

Despite the fact that every major Internet provider has added some kind of encryption to its services over the past year, tracking your online traffic is easier than you think.

And you don’t have to be the target of the hacker or the NSA for your traffic to be intercepted. There is a hole in mobile security that could make tens of millions of Americans vulnerable.

Unsecure Wi-Fi networks have been a well-known vulnerability in the tech industry for years. They can let even the most unsophisticated hacker capture your traffic and possibly steal your identity. . . .

What happens on Facebook stays on Facebook – forever – and attorneys conceivably run into risk if they fail to investigate pertinent posts, a judge suggested during a recent presentation about social media evidence. . . .

Apple (AAPL) and Google (GOOG) say they’re tired of being slapped with baseless patent suits that cost them millions in legal fees. Now they’re asking the U.S. Supreme Court to let them hit back. The two are leading a group of companies urging the court to make it easier for businesses to recover legal costs when they win a patent infringement suit. In two cases to be argued this month, the justices will hear them out.

More than 100,000 businesses were threatened in 2012 by ‘patent assertion entities.’ Often derided as patent trolls, these companies get most of their revenue from licensing patents and from suing other companies for infringement. They filed 19 percent of all patent lawsuits from 2007 to 2011, according to the Government Accountability Office. . . .

This website also includes a way to find out whether your passwords were stolen. – CCE

Summary: Trustwave’s SpiderLabs found a Pony Botnet Controller server holding over two million passwords and account credentials for ADP payroll, Facebook, Twitter, Yahoo and more belonging to victims around the world.

* * *

Interest turned to stunned surprise when the researchers uncovered a Pony Botnet server stabling over two million account credentials and passwords for Facebook, Yahoo, Google, Twitter, Linkedin, Odnoklassniki (the second largest Russian social network site) and more.

Everyone knows by now that human resources professionals and employers use social media to screen potential employees. Studies now show that some employers illegally discriminate against applicants based on what they find. CCE

Study Finds Evidence of Unlawful Discrimination in Using Social Media to Recruit Employees, posted by Jason Shinn, Michigan Employment Law Advisor

A recent article in the Wall Street Journal (reported on 11/21/2013 by Jennifer DeVries) discussed a study showing bias in the hiring process when social media is used to screen job applicants. Because of the potential for unlawful discrimination and losing out on otherwise qualified job applicants, the article and study should be a “must read” for every human resource professional or anyone with hiring responsibilities.

After providing a detailed review of the issue over a 22 paged Opinion, which includes a background on Facebook itself and a review of decisions from both within Pennsylvania and from outside jurisdictions, Judge Wettick ruled that both the Plaintiff’s and the Defendant’s motions to compel access to the other’s Facebook pages would be denied in this motor vehicle accident litigation.